IMPORTANT POINT
Litigants should not suffer due to the negligence of their counsel; sufficient cause must be shown to set aside ex-parte decrees.

ORDER :

(Nupur Bhati, J.)

1. This writ petition has been filed by the petitioners/plaintiffs under Article 227 of the Constitution of India challenging the order dated 19.07.2024 passed by learned Additional District Judge, Nokha, Bikaner in Civil Suit No. 20/2023 (Bajranglal & Anr. v LRs of Phoolaram), whereby the application filed by the respondents-defendants under Order IX Rule 13 of the Code of Civil Procedure, 1908 (‘CPC’) was allowed by the learned Trial Court.

2. The writ petition has been preferred with the following prayers:-

“1. By an appropriate writ, order or direction, the order dated 19.07.2024 (Annex.8) passed by Additional District Judge Nokha, Bikaner in Civil Misc. Application No.20/2023 (Bajranglal & Anr. Vs. Phoolaram) whereby the application under the provisions of Order 9 Rule 13 CPC, filed by the respondents has been allowed, may kindly be quashed and set aside.

2. Any other appropriate writ, order direction which this Hon'ble Court may deem just and proper may kindly be passed in favour of the petitioner. or

3. The cost of the writ petition may kindly be awarded in favour of the petitioner.”

3. Briefly stated, the facts of the case are that the petitioner-plaintiff filed a civil suit on 03.05.2017 (Annex.1) seeking cancellation of the sale deed dated 23.08.2016 (Annex.2) and perpetual injunction. It was stated in the suit that the sale was executed in consideration of a total of Rs. 15,45,000/-, out of which only Rs. 1,00,000/- was paid, and therefore, on account of failure of the respondents-defendants to pay the rest of the amount, the petitioner-plaintiff filed the suit. In response to the plaint, the respondents-defendants filed the written statement (Annex.4).

4. Thereafter, ex-parte proceedings were initiated against the respondents-defendants vide order dated 03.02.2023 and the learned Trial Court framed four issues and after taking into consideration the evidence of the petitioner-plaintiff, proceeded ex-parte. Subsequently on 03.06.2023 (Annex.5), learned Trial Court decreed the suit in favour of the petitioner-plaintiff and cancelled the sale deed dated 23.08.2016 and restrained the respondents-defendants from alienating, selling or transferring the property in dispute.

5. On 21.07.2023 (Annex.6), the respondents-defendants filed an application under Order IX Rule 13 of the CPC, read with Section 5 of the Limitation Act, 1963, seeking setting aside of the ex-parte decree granted by the learned Trial Court vide order dated 03.06.2023 (Annex.5) and for condonation of delay, respectively, while stating that the counsel for the respondents-defendants had underwent a surgery of cornea transplant as well as he was taking treatment of eyes, therefore, could not appear before the learned Trial Court for the proceedings. In response to the said application, the petitioner-plaintiff filed his reply (Annex.7). Subsequent thereto, learned Trial Court vide order dated 19.07.2024 (Annex.8), allowed the application filed by the respondents-defendants under Order IX Rule 13 of the CPC, while imposing a cost of Rs. 10,000/- and set aside the ex-parte decree dated 03.06.2023 (Annex.5).

6. Thus, aggrieved by the order dated 19.07.2024 (Annex.8), passed by the learned Trial Court, the petitioner-plaintiff has preferred this writ petition.

7. Learned counsel for the petitioner-plaintiff submits that the learned Trial Court has erred in allowing the application filed by the respondents-defendants under Order IX Rule 13 of the CPC, as the counsel for the respondents-defendants failed to appear before the learned Trial Court for the proceedings and therefore, the decree dated 03.06.2023 (Annex.5) was rightly passed ex-parte by the learned Trial Court. He also submits that the same counsel representing the respondents-defendants had put in appearance in other cases during the same time period in which he claimed to be undergoing an eye treatment as well as for surgery of cornea transplant and therefore the counsel for the respo